(affirming federal district court judgment following remand in 1973 FEDERAL CARRIERS CASES P82,382 after withdrawal of opinion in 1972 FEDERAL CARRIERS CASES P82,330).
Adams and Rosenn, Circuit Judges, and Sheridan, District Judge.
This appeal, which brings these parties before this court for the second time,*fn1 involves four actions*fn2 filed by plaintiff-consignee, Blue Bird Food Products Co. (Blue Bird), against defendant-carrier, Baltimore & Ohio Railroad Company (B & O), for alleged damage to four carloads of fresh hams shipped by midwest meat packers via defendant to plaintiff in Philadelphia. The action is brought under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11). The issue presented is whether the introduction of a bill of lading with the notation,
Received, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, . . . the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) . . . .
is sufficient to establish the good condition of the lading at the time it was delivered by the shipper to the carrier. The district court, both in its initial opinion and on remand, held that it was not. Having considered the contentions of the parties, we affirm the judgment of the district court.
The facts necessary to our decision are as follows.*fn3 The four carloads at issue were shipped from the midwest to the Philadelphia destination point pursuant to a "piggy-back" transportation operation where trailers are hauled to the destination on railroad flatcars. As developed in testimony before the district court on remand, the mode of shipment designated by the shipper in these cases required the shipper to load a trailer furnished by the carrier. The district court found as facts:
1. When the shipper was ready to load the trailer, it contacted a "spotter" (a railroad agent who is on the shipper's premises) who backs the trailer to the shipper's loading dock.
2. The hams were individually loaded by the shipper, one piled upon the other, so that when loading was completed, the hams extended from the front to the rear of the trailer to a height of approximately three to four feet.
3. Subsequent to loading but prior to the doors of the trailer being sealed, only the rear portion of the contents of the trailer were "open and visible" and the subject of a reasonable inspection.
4. When loading is completed the trailer is pulled away from the loading dock, the rear doors are closed and the shipper places its seal upon the doors of the trailer.
5. The seal affixed by the shipper is a small, thin metal band which locks when one end of the band is snapped into the other end.
6. The trailer is then driven to a location upon the shipper's premises.
7. Upon notification that the plaintiff was ready to ship the load, the railroad's drayman was dispatched to the plant site.
8. Upon his arrival, the drayman hooks his cab to the trailer, inspects the seal, refrigeration system and ...